April 11, 1996
An Open Source Electronic Commons
A Public Service of
the Robert F. Hobbs Foundation
A Division of Web Portal Inc., a 501(c)(3) Corp.
DESK - While the rise of electronic
commerce excites visions of a new economy, the Internet continues
to produce explosive growth in free, public communication. The sheer
scale and variety of the electronic public domain are staggering,
but the promise is not simply an information cornucopia. Despite
all its problems, the Internet has the potential to remedy some
historic defects of public communication. It has already begun to
do so, and with additional capital and new forms of organization,
it can do much more. Several distinct developments contribute to
the transformation of the public domain.
First, much work in the public domain in the legal
sense (that is, not subject to copyright or patent) has been traditionally
available to only a few. Government data may be buried in files;
literary works, out of print. The Internet can make genuinely public
what has only been nominally public.
Second, the Internet provides incentives for commercial
producers of intellectual property to shift from exclusive, high-priced
forms of distribution to more open, low-priced, or free distribution--in
short, from proprietary channels of communication to what I'll call
the "commercial public domain."
Third, the Internet allows cheap production and
dissemination of new noncommercial knowledge. Given the costs of
earlier media, many people with shared interests have been too dispersed
and unconnected to communicate and cooperate with one another, much
less to publish their work.
The Internet does not just facilitate dialogue
among them; it also provides the basis for combining many small
contributions into large collaborative endeavors. It allows many
people with political, aesthetic, or other interests, who have no
expectation of commercial gain, to make their work publicly available
for the first time or to expand from local to global communication.
And, fourth, far from serving merely as a passive
conveyance for messages and transactions, the Internet has proved
to be a seedbed of innovation. Many of the traditional public sources
of information, such as libraries, have been limited in flexibility
and slow to innovate.
The Internet and online digital libraries are more dynamic, adaptable
to different modes of communication, and amenable to innovation
in public as well as private goods and services. Nowhere has the
innovative potential of the new public media been better demonstrated
than in open-source software--programs whose source code has been
openly distributed on the Net and improved through numerous independent
contributions. The development of the Internet itself exemplifies
that process and its advantages [see Lawrence Lessig, "Innovation,
Regulation, and the Internet," page 26].
This transformed public domain should not be expected
to solve the deepest problems of democratic politics. There is no
sign that the Internet will engage the disaffected in public life,
give voice to the powerless, or raise the standards of debate. Those
who have hoped to use the Net to improve elections and the responsiveness
of elected leaders have, at least thus far, typically had disappointing
results. But it is, nonetheless, good for democracy that the Internet
facilitates the production and global dissemination of public goods--public
information services, public intellectual technologies, public mechanisms
for connecting people and building civil society.
Indeed, the Internet has generated an outpouring
of public goods that conventional economic models cannot readily
explain. According to the usual logic, goods and services should
be underproduced if those who invest in them do not have the proper
incentives for individual gain--and in a public domain, they don't.
"Freedom in a commons brings ruin to all," wrote Garrett
Hardin in his influential 1968 essay "The Tragedy of the Commons,"
which used a village's overgrazed public land as its paradigmatic
case. Hardin was right about the environmental problems that he
was primarily addressing. Bu
The story of the Internet has been more like "The Triumph of
the Commons." Rather than inhibiting productive energies, the
electronic commons has released them. It has enabled many people
to find a public for their work that they could never have found
through earlier channels of distribution. New markets are being
created on the Net; so are new public spaces.
The flourishing of public space on the Internet
ought not, however, to lead to complacency about its development.
The new public domain faces threats to its integrity and openness,
and it is marred by frauds, fakes, and intrusions into personal
privacy. Like electronic commerce, the electronic public domain
needs law and aggressive advocacy to protect it from lawlessness
and monopolistic control, though the greater part of what needs
to be done lies outside government. This article is a brief attempt
to think through those challenges.
Think of the public domain in intangible wealth
as consisting of all information and communications publicly available
for free or at minimal cost. Within that broad expanse are three
distinct areas. The first, the legal public domain, consists of
works that are not protected by intellectual property rights. Among
these are government publications and public data; privately produced
literary and other works on which copyright has lapsed or for which
copyright protection was never obtained; and knowledge derivable
from works still under copyright (which protects the form of expression,
not the information or ideas expressed).
The second area, the commercial public domain, consists of work
commercially owned and protected by copyright, but open to the public,
often for free or at cheap prices. And a third area, the nonprofit
public domain, also consists of copyrighted work open to the public
at minimal cost, but owned by nonprofit organizations with different
incentives from commercial owners. Finally, beyond all these is
an illegal public domain--that is, copyrighted work being freely
distributed without authorization--which the Internet has also expanded.
Unlike most other property rights, intellectual
property rights are temporary. Although some publishers and authors
have sought to make copyright perpetual, the premise of the law
in Britain and America ever since the eighteenth century has been
that all original work, after a fixed period of protection, will
move into the (legal) public domain. Nonetheless, the public domain
has remained an afterthought of policy. An enormous, well-financed
effort is now legitimately devoted to the protection of private
intellectual property against digital infringement. But there is
no comparable effort to exploit the increased value of public intellectual
property in the digital age.
To be sure, much public intellectual property is
now available online. Some legislatures, courts, and government
departments, particularly at the federal level, have put public
documents and data on the Web; the U.S. Census Bureau, for example,
posts not only its publications, but also some of its data, along
with software for online mapping and analysis. (The Census Bureau,
in fact, has eliminated many of its print publications.) However,
many states, counties, local governments, and courts have done little
to make information available on the Net. The single most important
goal of online government publication ought to be improving the
transparency of the state. At the very least, laws and regulations,
court decisions, public budgets, the minutes of public meetings--all
such documents should now be freely accessible online. Just as we
have legal requirements for open public meetings and freedom of
information requirements for the disclosure of government files,
so we need to move beyond desultory experiments and codify requirements
for online dissemination (with suitable exceptions for individually
identifiable information, such as motor vehicle records).
Government, however, could do far more with public
information resources than merely posting documents. For example,
much of the data gathered for public purposes is geographical in
nature: It describes where people live and work and how certain
problems, such as disease or crime, are spatially distributed. Geographic
information systems that link different kinds of maps (for example,
of environmental risks and epidemiological data) can substantially
improve public knowledge. But such systems require considerable
investment, and too often governments decide either not to develop
them at all or to turn them over to private firms that charge high
prices for their use. The development of such resources ought to
be seen as the public works of the information age, appropriately
demanding public investment.
No one who surfs the Web can fail to be struck
by the vast number of free sites created by individuals and organizations
offering historic documents, classic literary texts, technical information,
and other work in the public domain. The principal difficulty with
these sites is reliability. Readers often have no way of determining
whether the texts or data are genuine; some have been carelessly
scanned in without being checked or are mendacious and untrustworthy.
And while the dynamism of the Web is exciting, many sites are ephemeral
or are not maintained and soon become dated. To make the most of
the electronic public domain, we need new mechanisms to solve these
Since the Web defies any kind of centralized control,
there will necessarily be many independent efforts. Various organizations
already rate sites for their quality, and these efforts will undoubtedly
increase, but something more formal--with significant resources
behind it--may be necessary to achieve high standards of reliability.
One possibility would be to establish an endowed library of the
public domain--call it the Global Public Library. This would not
be a single site, but rather a means of accrediting sites and channeling
philanthropic capital for online development of public intellectual
The glory of the Web is its distributed
character; if one library or a group of scholars somewhere in the
world invests time and effort in putting the collected works of
Milton online, Milton's writings become universally available. An
internationally sponsored library could accredit affiliates in different
spheres of knowledge that would put public intellectual property
online and pledge to observe certain textual and bibliographic standards.
For example, affiliates would have to serve an archival function,
offering permanent access to sources at stable URLs (online addresses)
or reliably forwarding visitors to new locations. In return, the
affiliates would have privileged listing in the Global Public Library
and access to funds channeled through it.
The contents of the Global Public Library might
not be in the public domain in the legal sense. Some of the affiliates
could be nonprofit or commercial organizations that would retain
ownership of their own editions, but guarantee that these be freely
accessible. Affiliates might choose to make use of a mechanism known
as "copyleft," which, unlike copyright, grants unlimited
permission to copy and modify, while denying the user the opportunity
to copyright the material and thereby monopolize rights over it.
For example, the Global Public Library could hold legal copyright
to the materials and then provide an unlimited public license, or
copyleft, to the world.
The model public license for software created by Richard Stallman
in 1983 obligates users to make available the source code to all
derivative works; they can make a profit by selling modified versions
of the software (the impetus here isn't socialism), but they can't
ask for a fee for the source code or impose additional license terms,
except copyleft. This has proved to be an extraordinarily valuable
The idea here is not to create a monopoly out of
the public domain, which in any case would be impossible. Nothing
would preclude other sites outside the Global Public Library from
offering access to work in the public domain or from building services
"on top" of the resources that the Global Public Library
distributed. However, unless these sites met accreditation standards
for public-domain materials, they wouldn't be able to claim the
library's designation (its logo being one thing that would not be
in the public domain).
Building a Global Public Library could have significant benefits
for traditional, bricks-and-mortar libraries, which face staggering
burdens from growing costs. Clearly, online libraries have overwhelming
advantages for distributing software, statistical and other computerized
data, audio files, and (as bandwidth falls in price) video and multimedia.
Even for texts, digital libraries have lower storage costs, more
rapid search, hypertext links, and other advantages. In the next
few decades, a great proportion of existing literature will be converted
to digital form--a recent advertisement for Microsoft rather optimistically
envisions the entire Library of Congress being converted by 2015.
Instead of trying to maintain large collections, especially of infrequently
used materials, conventional libraries will increasingly reconfigure
themselves as information centers that provide guidance and access
to online sources, some of which will be commercial and impose new
charges. The development of more extensive, trustworthy online sources
in the public domain will make this transition more affordable and
The scholarly disciplines and universities have
an important opportunity to reduce library costs by enlarging the
public domain of science. In recent decades, the costs of many commercially
published scientific journals have soared to astounding levels.
Some subscriptions now cost $10,000 a year, and the companies that
publish them have reaped phenomenal profits from their captive market,
the research libraries. There is no rational basis for these charges,
especially in light of the rising use of online alternatives for
more rapid communication in physics and other sciences [see Harvey
Blume, "Open Science Online," page 44].
In the academic world, unfortunately, electronic publication has
become confused with unrefereed publication, and electronic journals
carry less prestige. But an online journal can require review and
approval by scientists and scholars in the field, and it is their
authority that ultimately lies behind any journal's reputation.
What's especially exciting is that electronic journals can publish
not only conventional articles, but also the data underlying the
research, with accompanying software tools that allow readers to
do their own analyses. Electronic publication actually makes possible
greater scrutiny than in the current system. The disciplines and
universities should be actively organizing authoritative electronic
publications to break the hold of the commercial journals, to cut
costs for their own libraries, and to seize opportunities to improve
science and scholarship.
These considerations ought to influence the flow
of public and philanthropic funds. Rather than provide only partial
support for the development of online resources in the expectation
that grantees will make up the rest by charging for access, funders
should provide full financing up front and require that public access
be free. Donors should even consider making lump-sum grants to publishers
to put their electronic archives and back lists into general public
use through copyleft. The benefits to community and educational
libraries as well as individual readers around the world will be
considerable. From an overall welfare point of view, the key economic
fact is this: The marginal costs of online publication--that is,
the costs of disseminating materials to an extra reader--are near
zero; consequently, the usual argument for prices as a means of
allocating scarce resources simply doesn't apply. In this case,
the interests of efficiency as well as equality favor eliminating
prices to the consumer.
The phrase "commercial public domain"
may seem an oxymoron: If something is commercially owned, how can
it be in the public domain? Intellectual property, however, can
be made public to varying degrees. Publication of a work puts ideas
and information into the public domain without surrendering rights
to the work itself. When a magazine is distributed for free or a
television show is broadcast, the owner makes public at least for
a time the right to read or view the work, though not the rights
to copy and redistribute it. The Internet has effectively extended
the scope of the commercial public domain. Free sites are everywhere,
and their owners plainly accept that users will copy files--that
is what viewing them entails. Indeed, many sites, such as newspapers,
invite readers to e-mail a copy of an article to a friend. Also,
by creating links to another company's openly accessible, copyrighted
text or image files, sites may effectively incorporate them into
works of their own. On the Net, the distinction between private
intellectual property and the public domain often seems more formal
than real: If something is freely available, copyright doesn't much
limit how the public uses it.
As the commercial presence on the Internet has
grown during the past decade, many people have wondered whether
the Net's original premise of free access to information could possibly
survive. No one knows for sure what will happen in the long term,
but thus far free access has remained the norm for newspapers, magazines,
and other media sites even as charge-based services (such as the
online version of The Wall Street Journal) have emerged. Some free
online publications, such as Slate, have tried to switch to subscriptions,
only to return to free access as their traffic fell.
As in broadcasting, much content is free to the consumer only because
the sites sell eyeballs to advertisers. On the Web, however, sites
capture not just eyeballs, but also fingers, which can click through
to complete transactions. And this revenue-generating traffic is
so valuable that it makes sense for sites to give away lots of content
that publishers in other media would charge for.
The sites want visitors to come back repeatedly and to see themselves
not as an audience but as a community; the aim is to build long-term
customer relationships, and free content is thought vital to doing
so. Instead of profiting from the sale of content itself, a site
may hope to make money by selling customized services related to
that content; or instead of profiting from its software directly,
a company may give it away because it wants to rope in consumers
and make money by performing services that depend on use of its
All these considerations weigh especially heavily
because the competition for market share on the Net is intense,
and companies that might want to impose charges for content are
deterred from doing so. (These pressures have not, however, deterred
companies from seeking to patent every conceivable innovation, a
development that cuts in the opposite direction.) On the whole,
the competitive pressures on the Net have benefited the public,
in some cases by opening up unprecedented access to information
At no charge, for example, readers today can browse through newspapers
and magazines from all over the world, and listeners can find distant
radio stations (and other music sites) with the music they love,
however esoteric. On the Internet, the benefits of globalization
aren't as abstract as they are in trade; the Net has radically reduced
the cost of obtaining information from a distance regardless of
At the same time, the commercial development of
the Internet has generated problems that seem unlikely to be solved
without government regulation and, indeed, without international
treaties. Privacy has been the leading casualty. Commercial Web
sites have such strong interests in data about their visitors' surfing
habits and personal characteristics that they are unlikely to desist
on their own from the abuses that have become rampant. Individual
Web sites may post their privacy policies, but it is implausible
to expect visitors to check the fine print--this is what we hire
governments to do.
While libertarians worry about governmental excesses,
they often seem blind to the risks of private concentrations of
power. The immediate peril to the freedom of the Internet lies in
the transition to broadband--the rapid, high-bandwidth service that
should make the Net a major venue for movies, television, and other
mass entertainment. As Internet use migrates to broadband, the big
cable companies--chiefly AT&T and AOL Time Warner--may come
to dominate access and begin charging both users and sites for premium,
high-speed connections [see Jeffrey Chester and Gary O. Larson,
"End of the Open Road?" TAP, January 17, 2000]. Plainly,
the sites that do not have the financial resources will be confined
to the periphery of the Web at least as an entertainment medium.
There has already been a growing concentration
of Internet traffic in a small number of major commercial sites,
primarily the big portals such as Yahoo! and AOL. Indeed, much of
the capital going into Internet start-ups has gone to the portals
for help in attracting traffic. Broadband will likely accentuate
the tendencies toward concentration, giving even more power to the
new media gatekeepers (and toll collectors) who sit astride the
straits of cyberspace.
Can any plausible policy entirely prevent the development of such
choke points? I doubt it, but we might at least limit the power
of the new gatekeepers in two ways. One is "open access"--requiring
cable companies to let customers buy Internet access on equal terms
from competing service providers. (AOL supported open-access regulation
until its announced merger with Time Warner prospectively gave it
control of its own giant cable system; then it said the whole matter
could be safely entrusted to the industry.) A second countermeasure,
comparable to the funding of public radio and television, is support
for nonprofit and educational sites that will need more resources
than in the past if they are to participate in the new higher-end
The development of the nonprofit public domain
is still one reason for optimism about the Web's public implications.
The big corporate media will almost certainly dominate mass entertainment
and commerce on the Web. But if much of the current TV audience
and shopping mall traffic comes to the Internet, why should that
influx harm the kinds of public and nonprofit functions the Net
is now serving? The Web will still have all of its advantages for
low-cost, global, public communication and collaboration. To be
sure, space on the viewer's first screen isn't infinite--that's
the source of portal power--but there will still be an electronic
commons, and it won't be hard to get there.
The debate about intellectual property today is
dominated by companies that fear that the new digital environment
will prevent them from enjoying the full return on their investments.
I see their point--they have every right to those returns--but this
is not a problem that keeps me awake at night. After all, the new
environment also gives the same companies new sources of earnings
that often dwarf the losses from purloined copies.
Moreover, one of the powerful lessons of recent experience is that
the traditional hold-your-cards-close-to-the-chest, proprietary
view of information isn't necessarily the best strategy anyway.
Nonetheless, the balance of political influence is entirely on their
side: Nearly all lobbying and recent legislative changes favor stricter
defense of intellectual property interests over the public domain.
If there is a tragedy of the electronic commons, it will most likely
be a political tragedy because of the absence of any organized defense
of the commons against infringement.
The new public domain is one of the most valuable,
if almost accidental, consequences of the digital revolution. It
needs its champions. I suggested earlier that the new technology
can improve the transparency of government, but the pursuit of transparency
should be seen as a more general goal. Open-source software shows
the power of transparency--of opening up knowledge to wide access
Before the Internet took off, there were many competing proprietary
online networks: Why did the software for the Internet triumph over
others that had received far greater investment? Open-source development
of the Internet as a public good produced faster innovation and
growth in the network, which consequently became more valuable because
it connected so many more people.
The open-source approach also encourages trust and allows contributions
from unknown, creative people. The electronic commons works because
its resources are not readily depleted as use increases--in fact,
its value grows the wider it extends.
©Copyright 1996-2002 By The California Star.
All rights reserved.